ADR Bulletin

ADR Bulletin

Volume 7 | Number 7 Article 3

2-1-2005

A History of Alternative Dispute Resolution

Laurence Boulle
Bond University, Laurence_Boulle@bond.edu.au

Recommended Citation
Boulle, Laurence (2005) "A History of Alternative Dispute Resolution," ADR Bulletin: Vol. 7: No. 7, Article 3.
Available at: http://epublications.bond.edu.au/adr/vol7/iss7/3

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 Boulle: A History of Alternative Dispute Resolution

ADR Bulletin

Book review

A History of Alternative
Dispute Resolution
Laurence Boulle

A History of Alternative Dispute have obvious analogies with mediation,

Resolution: The Story of a Political, conciliation and peace-making practices
Cultural and Social Movement in non-traditional societies and the
By Jerome Barrett, with authors of this book refer to similar
Joseph Barrett, Jossey Bass, US. traditions among Hawaiian islanders,
the Yoruba of Nigeria and the
In the Kalahari desert in Botswana Abkhazian of the Caucuses. Whether
and Namibia the Bushmen have lived we label this a ‘history’ of ADR or not,
traditional lives for many thousands of it provides an engaging insight into the
years. The lack of technological individual and collective wisdom of
refinement belies a sophistication in societies responding to difficulties
dispute resolution practices which have caused by the ‘selfish gene’.
evolved without courts and a formal The ‘ADR Timeline’ in the early
state system and are suited to the needs pages of the book begins in 1800 BC
of a collective hunter-gatherer society. when the Mari kingdom (in
The Bushmen’s is not an idyllic contemporary Syria) used mediation
existence and disputes occur over food, and arbitration in disputes with other
land and mates. Those in conflict bring kingdoms and ends with the 21st
other members of the tribe together to century use of mediation in the
hear out both sides. Where passions Microsoft monopoly cases. There are
rise senior tribal members hide the references to dispute resolution
disputants’ poisoned hunting arrows to practices by the Phoenicians, the
prevent resort to violence. If resolution Greeks, the Indians and the Irish, but
is not reached in the small group the one of the shortcomings of the book
larger community is brought together from the perspective of an Australian
where everyone is able to talk through reader is that the focus shifts
predominantly from the
There are references to dispute resolution international to the local with
the commencement of
practices by the Phoenicians, the Greeks, modern American history.
Moreover, while a grand
the Indians and the Irish, but one of the historical sweep always
shortcomings of the book from the provides useful perspective,
it does so at the expense of
perspective of an Australian reader is that analytical focus. Thus, the
rich traditions of Chinese
the focus shifts predominantly from mediation and Muslim
the international to the local with the tahkim, different as they are
from modern conceptions of
commencement of modern American history. ADR, necessarily receive
shorter shrift than they
every aspect of the dispute over a deserve.
number of days until the dispute has Among the intriguing historical
been ‘talked out’. Economic reality and illustrations of ‘ADR’ phenomena are
social dependence preclude the easy the role of Mohammed in averting war
resort to violence over individual over the reconstruction of Kaaba, the
problems. use of symbolic contests to resolve land
While it is culturally narcissistic to disputes in West Francia in the middle
refer to these practices as ‘ADR’ they ages, and the remarkable survival of

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the Irish arbitration legislation enacted
in 1698 which remained unchanged for
250 years until its amendment in 1948.
There is a welcome chapter on
diplomatic ADR, again with historical
insights ranging from ancient Egyptian
emissaries to papal peace-makers,
focusing on successes and failures in
both domestic and international
relations. While this is not an
area which achieves much
attention in the contemporary
ADR movement, it is one in
which much could be
achieved through cross-
pollination among the peace-
keeping, conflict management
and ADR traditions.
Against the background of
these historical vignettes the
authors deal with the
development of ADR
(sometimes this term is used
anachronistically) in the
United States. From the
Australian vantage an area of
interest is the relatively early
development of mediation and
conciliation practices in industrial
relations and labour law which brought
some order to volatile and violence-
prone industries such as coal and the
railways. While the legislative
foundations were provided for exactly
these developments in Australia,
centralised bargaining and arbitration
never led to the same growth here and
contemporary ADR has been little
influenced by these traditions.
However, it may yet be that labour law
and industrial relations in this country
become infused by the ADR spirit in its
next phase of development.
From the 1960s civil rights programs
ADR began assuming importance in
areas of equal opportunity, anti-
discrimination and the environment,
to the point where it has become
institutionalised, legalised and semi-
professional in many different domains,
losing its ‘alternative’ tag on the way.
While a lot of this focus of the book
is local and specific to American
conditions, there are also themes of
broader interest in relation to the
development of ombudsman
institutions and the connection
of ADR with peace studies.
There is a final chapter on the ‘great
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ADR Bulletin, Vol. 7, No. 7 [2005], Art. 3
ADR Bulletin
expansion’ of ADR, but here the
authors draw a long bow indeed. In
attributing ADR in part to the success
of democratic movements in South
Africa and Poland there is an air of
easy triumphalism which overlooks the
protracted and sometimes bloody
struggles which occurred in these
countries. Moreover the suggestion that
From the Australian vantage an area of
interest is the relatively early development
[in the US] of mediation and conciliation
practices in industrial relations and
labour law which brought some order to
volatile and violence-prone industries
such as coal and the railways.
it has been an instrument of US foreign
policy in China and Eastern Europe
overlooks the complex and complicated
nature of the super-power’s relations
with the world – although in fairness
the authors do acknowledge the
intimidatory American tactics in
situations such as Bosnia.
The work ends on a sombre note
with reference to the US
administration’s recent ‘move against
ADR’ which quickly led to a decline
in the progressive labour management
relations which had developed in
government in the previous era. A
similar tendency is at play in the shift
from multi-lateralism to uni-lateralism
evident in recent years from the US
and some of its associates.
Ultimately texts such as these provide
a big picture of the emergence and
maturity of ADR, with interesting
illustrations and anecdotes. This book
does not purport to be scholarly or
analytical but it constitutes a useful
source of reference for anecdotes,
essays or presentations on the
subject. ●
Laurence Boulle is Professor of Law at
Bond University and can be contacted
at laurence_boulle@bond.edu.au.
2
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ADR Bulletin

diary and happenings

■ The Australian Commercial Disputes Centre has released the dates for its forthcoming
training courses up to June 2005. Training courses to help ADR professionals develop their
skills through a series of stages are available, as well as a number of one-day options including
two new one-day courses – ‘Mediation/Conciliation: Advanced Negotiation Techniques’ and
‘Concilio-Arbitration and how do you do it’. Visit www.acdcltd.com.au for more information.
■ The Victorian Chapter of the Institute of Arbitrators and Mediators Australia is seeking
expressions of interest in the 5-day mediation training course for the Practitioner’s Certificate
in Mediation and Conciliation to be held in Melbourne on 16, 17, 18, 22 and 23 March 2005.
Call (03) 9602 1711 or email vic.chapter@iama.org.au to register. Visit www.iama.org.au for
more information.
■ LAWASIAdownunder2005, an integration of the XIX Biennial LAWASIA Conference, the
34th Australian Legal Convention, the 44th QLS Symposium, and the 11th Conference of
the Chief Justices of Asia Pacific is being held at the Gold Coast Convention and Exhibition
Centre on 20-24 March 2005. The streams to be discussed include Dispute Resolution and
Litigation, Criminal Law, Human Rights and Constitutional Law, and Trade and Business
Law amongst others. Visit www.lawasiadownunder.com, email lawasia@ccm.com.au or call
07 3368 2544 to register or for more information.
■ The Australian Centre for Peace and Conflict Studies is holding an international conference
on ‘Peace, Justice and Reconciliation in the Asia-Pacific Region’ on 1-3 April 2005 in
Brisbane. For more information or to register contact n.mizner@uq.edu.au. To register your
interest in presenting a paper or facilitating a workshop contact k.clements@uq.edu.au.
■ LEADR is holding its 8th International Mediation Conference on 31 August–2 September
2005 at the International College of Tourism and Hotel Management, Sydney. For more
information, or to express interest, visit www.leadr.com.au.
■ The World Mediation Forum V Conference, jointly hosted by the Institut Universitaire Kurt
Bösch and World Mediation Forum, is being held on 9-11 September 2005 at the Congress
Centre ‘Le Regent’, Crans Montana, Switzerland. The Conference, entitled ‘Mediation: A New
Culture of Change’, will bring together mediators, academics, lawyers, psychologists and all
who support mediation to resolve conflicts, including former Eastern Europe, Asia-Pacific
countries, Africa and South America. The English language program is available in PDF Format
at www.mediate.com/world/flyer+grand+anglais20041125c.pdf. For additional information
and online registration, see mediation.qualilearning.org and www.mediate.com/world.
■ The Trillium Group is conducting 4-day ADR Certificate Workshops (Level 1) and Advanced
ADR Certificate Workshops (Level 2) in Sydney, Melbourne, Canberra and Townsville
throughout 2005. For more information call 1-800-636-869 toll free or 02 9036-0333 or visit
www.thetrilliumgroup.com.au.
■ The Bond University Dispute Resolution Centre is conducting a Basic Mediation Workshop
on the Gold Coast on 28-30 July 2005 and an Advanced Mediation Workshop at Noosa on
23-25 September. Email drc@bond.edu.au for more information.

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